Respondents Brief — Peterson v. Stanczak

JOSEPH R. CURCIO

184 North LaSalle Street

Chicago, Illinois 60602

enh NIP WRN ENS HEA TE MOREA ID seeege ll

« -

SAR PEF PRORATED BN

The articles taken from petitioner’s automobile by

the arresting officers were in plain view at the time

of his arrest, were not illegally seized pursuant to

any illegal search, and the testimony concerning their

recovery was admissible in the instant civil action _..

A. There was no illegal search for seizure ........

B. Under applicable Illinois law, petitioner

waived his right to object to the allegedly imn-

MAGPIES ovsisesctssucasvescesnceetorinteniacecnins

INDEX

PAGE

Questions Presented .........sseecsesssseesseesesssneesneennesnnecsnes 1

ater CE TGS ccssccesssnceessesecesesesanssessesnnevncctnvensnnenaonenee 3

The contentions of the plaintiff... 0... cece 3

The crime under investigation ............cceeeeeseeeeeees 4

The witnesses who implicated plaintiff .....................- )

The attempts to arrest plaintiff 00.0... eee ecto 8

The open view of the seized evidence ..............es 9

First encounter at the Zion police station .................... i)

Conferences between Plaintiff and counsel ................ 12

a sna atereaiscuhsipensoeanetenendbbaeiiagegpastnnelaesebuapsictmnsabiadicaiain 13

Preparation of the indictment ...................-.sssseseseseeeres 13

Plaintiff’s plea of guilty before Judge Moran ........... 14

The defendants who are not respondents ...................- 15

Argument;

L

21

ed

ll

PAG

C. The error, if any, of admitting the evidence.

of the seizure was harmless and not prea

w

II. aw

s

Defendants acted in good faith and with probable

cause in arresting plaintiff for a crime and the jury

MW NI ch ceistntesersintcicsaptasenisemcetineipiecoantsastie cease ane

A. The trial court properly permitted respon-

dents to introduce evidence, including pe-

titioner’s voluntary confession, tending to

show that he had committed a crime which

respondents had a duty to investigate and

aa ccm A ee 2

1, The defense of good faith and probable

cause was available to the defendant un-

der 42 U.S.C. § 1983 ooocceccccccceccecccc 97

2. The evidence of plaintiff’s guilt and con-

fession, and defendants’ reasonable }e-

lief that Peterson committed a crime, was

admissible to negative plaintiff's charge

of a ‘‘conspiracy’? under 42 U.S.C. §

1985 etosoniiaddinectndpciiadiiasebdagaie doce 30

B. Plaintiff’s confession of guilt was not coerced

and the circumstances under which the contes-

sion was given were admissible on the issue of

probable cause 2

III.

The trial court properly excluded the proffered im-

peachment’’ testimony and in any event the exclusion

was haradess error... 35

Conclusion a

iii

CITATIONS

Table of Cases

PAGE

Agnew v. City of Compton, 259 F, 2d 226 (9th Cin

IIIA: 5d sisters ciao eaiaatemian adnan aonieisdnenateapaasde 28

Bee v. Beto, 884 F, 2d 925 (Sth Cir, 1967) 000... 22

Beauregard v, Wingard, 362 F., 2d 901 (9th Cir. 1966) 28

Bowens vy. Knazze, 237 F. Supp. 826 (D.C. N.D. Il.

OT EEE Te Te eA RET 29

Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26

Bs Se re CD cestercctinionnncisesantbtanccasconsiabasichatesivibeveaa 19, 23

Coolidge v. New Hampshire, 403 U.S. 448, 91 S. Ct.

_ ee ee ee FL} h | Beeecnenner ae 18, 19, 24

Daniels v. Van de Venter, 382 F, 2d 29 (10th Cir. 1967) 34

Gabbard v, i 359 FY. 2d 182 (6th Cir, 1966) 2202... 28

Harris v. U.S., 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed.

SI satpriadansh sheheinssicisienscbiritoumsiisbiadchidinstensobons 18

Hebert v. Morley, 273 F. Supp. 800 (D.C. C.D. Cal.

BIE secpshcinshnisinnhutlidiciecnaceeneapiinediceaboeNciinsenreasoeahiianeesiia 29

Henry v. U.S., 361 U.S. 98, 4 L. Ed, 2d 154 (1959) -....... 16

Journeyman Plasters’ ete. v. NLRB, 341 F. 2d 539 (7th

es - sace ceictnadslecdiaatcecinsvingreeniingiesapaphsecmesaigmuteneiaidsonvicainies 37

Kenney v. Fox, 232 F. 2d 288 (6th Cir. 1956) ................ 28

Kerr vy. City of Chicago, 424 F. 2d 1134 (7th Cir.

IN scesrcape stash cc ieialccadisaicactniasaebsctenodinoncesdniicineadeusclannuad 27, 33

Mapp v. Ohio, 367 U.S. 643, 81S. Ct. 1684, 6 L. Ed.

Oy Se 16, 19, 24

iv

Michelson v. U.S., 335 U.S. 469 .........-.....-.-.-ceecscceeseeeseseee

Miranda y. Arizona, 384 U.S. 4386, 16 L. Ed. 2d 694

Canine sensiensictnnsnenrsnnrciennicenclinacnieninctoensnentatatoniank 25

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed.

A GR CRED: cnircnsentsiestiecadeesenitsipsanietammanriaiicnciaeccinie 28

Nesmith v. Alford, 319 F. 2d 859 (Sth Cir. 1963) _...... 34

One Plymouth Sedan v. Pennsylvania, 380 U.S. 693

CID ieiicnnenessisipenninceressnecnnichinneiaicncaletalipninentaniainbna eases 20

Pasterchik v. U.S., 400 F. 2d 696 (9th Cir.) cert. den.

395 U.S. 982 (1968) 24

People v. Deweese, 27 Ill. 2d 332, 189 N.E. 2d 247

(1963) 22

Pierson vy. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed.

2d 288 (1967) aie

Shipley v. California, 395 U.S. 818, 89 S. Ct. 2053, 23

L. Ed. 2d 732 (1969) 19

Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1248, 22

L. Ed, 2d 542 (1969) 18

Stevens v. U.S., 256 F. 2d 619 (9th Cir 1958) —.00.. 37

Trupiano v. U.S., 334 U.S. 699, 68 S. Ct. 1229, 92 L.

Ed. 1663 (1948) 18

U.S. v. Blackburn, 389 F. 2d 93 (6th Cir. 1968) ............ 24

U.S. v. Chastain, 435 F. 2d 686 (7th Cir. 1970) ........... 22

U.S. v. Ghaloub, 385 F. 2d 567 (2nd Cir, 1966) ................ 37

US. v. Lee, 274 U.S, 559, 47 S. Ct. 746, 71 L. Ed. 1202

(UND ce Se ee 18

PAGE

US. v. Lefkowitz, 285 U.S, 452, 52.5. Ct. 420, 76 L.

WED GEE CIOTIID ciceenscnetntiinetmensincnrerncindttcisnincccmnatinmveventans 18

US. v. McCarthy, 430 F. 2d 1289 (9th Cir.) ..............--+ 22

US. v. Newton, 442 F. 2d 622 (9th Cir.) cert. den,

ON cciactin centering ident cinstidinentnincpnimapnmaen 22

US. v. Parker, 447 F. 2d 826 (7th Cir. 1971) -.............. 37

US. v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 450, 94 L.

ee acaeecceecenaceniansdceraateektbieniipieipannammenseiesininitis 19

US. v. Reed, 392 F. 2d 865 (7th Cir. 1968) cert. den.

EE I ieaceesecensbeneesttteedestctstaeerintociioasonvaieidinnsnnnntiies 24

US. v. Sturm, 180 F. 2d 415 (7th Cir. 1950) cert. den.

339 U.S. 986 ac. Mc a ACI EE 22

Vale vy. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L.

I gaan coe aneaeeseninaasiamcemenennseiationaionanes 19, 24

Weise vy. Reisner, 318 F. Supp. 580 (D.C. Wise. 1970) 31

Whiteley v. Warden, 401 U.S. 560, 28 L, Ed. 2d 306

I aicetctncrceseteteeeeeenteryseeisanennaneammnniitichiissenineinsiidsiin 16

Williams vy. U.S., 399 F. 2d 636 (9th Cir. 1968) ............ 24

Statutes

aS, Tow. lin, Te SA Sy BO ie, 14

lil. Rev. Stats, 1963, Chap. 38, $9-1 ............-.....c.ec-ceeceeeseeeee 14

6 USC. 600GR,. 006 .................... 16, 27, 28, 29, 30, 31, 33

Miscellaneous

tea 20

I re senate nasties paigialak 22

Iu the

Supreme Court of the United States

Octrosper TERM 1972

No. 72-1582

STANLEY W. PETERSON,

Petitioner,

vs.

BRUNO W. STANCZAK, JACK HOOGASIAN, ROBERT

BABCOX, MILBURN HEARY KRAPF, DAVID H. BIDDLE,

DONALD NYSTROM, DONALD HOUTE and

CHARLES E. LARSON,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Cireuit

BRIEF FOR RESPONDENTS IN OPPOSITION

JURISDICTION

The jurisdictional requisites are adequately set forth in

the Petrrion.

QUESTIONS PRESENTED

It is respectfully suggested that there is nothing in the

record nor in the judgment order of the Court of Appeals

(set forth in Appendix to Petrt1ox For CERTIOR. \RI) on which

2

the purported questions presented by the petitioner can he

predicated. Rather, the questions as resolved by the trial

evidence are as follows:

1.

a. Is there any evidence in the record to sustain peti-

tioner’s claim of an ‘‘illegal seizure’* where it appears that

the police officers who came to arrest him on a warrant

for murder by abortion, had an open view of the articles

which he was removing from the trunk of his car?

b. Did the petitioner, represented by competent counsel,

waive his alleged Fourth and Fourteenth Amendment rights

by making no objections to the recovered evidence at any

stage of the criminal proceeding and by pleading guilty?

e. Arguendo, if the evidence was ‘‘illegally seized”’ in

the criminal case, was it admissible in the civil case; if not

admissible, was the admission ‘* harmless error’? in the in-

stant circumstances?

2.

a. Whether, in the civil rights action the accused defen-

dant police officers and public officials were entitled to in-

troduce evidence of good faith and probable cause in ar-

resting, detaining and prosecuting petitioner for a crime

which they had a duty to investigate and prosecute?

b. Whether the trial court properly limited evidence

of petitioner’s confession and other evidence tending to

show his guilt, to the issue of good faith and probable

cause?

ce. Whether, in the light of all the evidence, petitioner's

confession of aborting a woman, which criminal act caused

her death, was voluntary or coerced, and whether the record

supports petitioner’s allegations of physical mistreatment

and deprivation of his constitutional rights?

ia 3

3.

Whether the trial court exercised its sound discretion in

excluding the purported impeachment of a party defendant

for lack of a proper foundation?

STATEMENT OF FACTS

Petitioner’s scant ‘‘Statement of the Case’? is inade-

quate and inaccurate,

Since the evidence adduced at the trial thoroughly dis-

proved the allegations of petitioner’s civil rights com-

plaint, it would appear more important to summarize the

nature of that evidence than to refer to the unsupported

allegations.

Further, as the Court of Appeals notes, petitioner in his

appeal below did not ‘tattack the verdict of the jury as

being against the manifest weight of the evidence’? and

the court therefore did not deem it necessary ‘*to recount

the evidence adduced at the trial.’? (App. 2a-3a, Pet.)

For the convenience of this Court, therefore, a restate-

ment of the essential facts might be helpful:

The contentions of the plaintiff:

In his civil rights trial, plaintiff alleged and testified

that he was arrested without a warrant, that he was never

served with a warrant, that a warrant was never read to

hin. (Tr. 338, 340, 341, 353). At the police station, ac-

cording to his testimony, he was made to strip naked,

stand with other prisoners by defendant Crawford; (Tr.

337), Was threatened with a stick by Officer Nystrom (Tr.

337), was denied the use of toilet facilities and given no

4

food or water for an extended period (Tr. 348, 357). He

asserted he was ‘‘caged’’ in an undersized *‘chicken coop”

and was refused medical help.

He testified that he was denied the right to make a tele-

phone call, to engage counsel, that he was never advised

of the charges against him and never saw his indictment

until he was in the State penitentiary, (Tr. 344, 346, 372).

The crime under investigation:—

On April 26, 1963, Dolores Katalanich was admitted

to the Great Lakes Naval Hospital, in North Chicago, LIli-

nois. She died on the evening of April 27, 1963, after hav-

ing an abortion of her child by the insertion of catheters on

two different occasions. (Tr. 973-976, 979). The death

of Dolores Katalanich was not contested.

Lake County Coroner Babcox contacted the North Chi-

cago Police Department and requested an investigation

into Dolores’ death. Such investigation was commenced

immediately. (Tr. 1052).

Plaintiff, Stanlely Peterson resided in Zion, Illinois at

that time. On April 28, 1963, a Sunday, police officers

Krapf and Biddle of the Zion Police Department, came to

Peterson’s home and asked him to come with them. He

complied without objection. (Tr. 112-114).

The Zion police officers acted pursuant to a call from

the North Chicago police advising the Zion officers that

an arrest warrant, sworn to by Captain Crawford of the

North Chicago Police Department, had been issued by Po-

lice Magistrate Matjevich. (Tr. 406, 724, 726, 1056).

&

5

Officers Nystrom and Houte drove to Zion in a police

squad car, took custody of Peterson, handcuffed him as a

murder suspect, and drove him to the North Chicago Police

Department. There the arrest warrant was read to him.

(Tr. 727, 1056).

Upon delivering Peterson to the North Chicago officers,

Krapf and Biddle had nothing further to do with the case.

At the North Chicago Police Station, Peterson was ques-

tioned for two and one-half hours. He stated orally that

he had performed an abortion on Dolores Katalanich (Tr.

1107, 1109, 1110).

Peterson was held over night by the North Chicago Po-

lice and turned over to the Lake County Sheriff for deten-

tion until the return of an indictment by the Lake County

Grand Jury.

The witnesses who implicated plaintiff:—

Mrs. Joanne Fitzjolm, (employed as a nurse at the Great

Lakes Naval Hospital and a next-door neighbor of Dolores

Katalanich) testified that she was in the North Chicago

police station twice on April 28, 1963, once in the morning

and again at noontime. (Tr. 965, 966). She told her story

to Captain Crawford and other police officers; Coroner

Babcox was present at the second conversation. (Tr. 966).

Mrs. Fitzjohn informed the officers that Peterson had

made arrangements with Dolores Katalanich for an abor-

tion; that Peterson met with Dolores on April 9th and that

she had ‘‘passed a fetus’* on April 15th. (Tr. 967).

Mrs. Fitzjohn transported Dolores in an automobile to

the Billy G. Motel, at Route 63 and Skokie Highway, where

Dolores was to meet Peterson. (Tr, 968).

6

Mrs. Fitzjolin testified that the next time she saw Dolores

Katalanich she was unconscious and ‘*I was very scared’.

(Tr. 968). She called Terry Green, a friend, who came

to the motel to assist in taking Dolores to the hospital.

Prior to their departure, Peterson removed a catheter from

Dolores’ slacks. (Tr. 969).

Mrs. Fitzjohn also testified that she informed Assistant

State’s Attorney Hoogasian that Dolores had telephoned

Peterson, who arranged to meet her at MecDonald’s on

North Lewis Avenue. (Tr. 973). An abortion was dis-

cussed at this meeting. (Tr. 973).

Mrs. Fitzjohn testified that she had related to Mr.

Hoogasian that on April 15, 1963, Peterson came to Dolores’

home, knocked at the door and entered with two bags

containing some Southern Comfort whiskey, beer and a

box of candy. He knew it was Dolores Katalanich’s birth-

day. They had a couple of drinks together and they

went into the bedroom. (Tr. 975). The witness stated she

heard Dolores ask Peterson if it would hurt, and he re-

sponded that ‘‘he had done hundreds in the last 20 years

and that everything was okay.’’ It would not hurt and the

liquor he brought was to relax her. (Tr. 976). Peterson

took one of the bags with him into the bedroom. (Tr. 977).

The witness told Hoogasian that Peterson and Dolores

stayed in the bedroom for about 20 minutes or a half

hour, after which plaintiff came out and announced that

everything was okay. (Tr. 977).

Mrs. Fitzjohn stated that Peterson insisted on having

sexual intercourse with Dolores ‘‘to relax her.’’ (Tr. 978)

And she said that there was just one little pain during

the operation. (Tr. 978). The witness related that she

7

informed Hoogasian that Dolores had passed the fetus,

but that no afterbirth had come out, and Dolores was wor-

ried that there might be twins. Plaintiff suggested that an-

other catheter be inserted. (Tr. 979).

Hoogasian was informed by Mrs. Fitzjohn that on April

26th, Peterson had gone into Cabin 4 at the Billy G@ Motel

with Dolores. At Peterson’s suggestion, Mrs. Fitzjohn

was also there. (Tr. 980-981). The witness noticed that

Dolores was in a state of shock or unconsciousness and

asked Peterson what had happened, to which he responded

that she is ‘‘just in shock, she will come out soon’’, Mrs.

Fitzjohn tried to bring Dolores to consciousness, but could

not. (Tr. 981, 982). Peterson put money in Dolores’ purse

in case she had to go to the hospital. (Tr. 982). Peterson

stated that he had to remove the catheter which he took

from Dolores. (Tr. 983). Mrs. Fitzjohn and Terry Green

then took Dolores to the hospital. (Tr. 983).

Mrs, Fitzjohn testified that she had not been promised

immunity from prosecution by Mr. Hoogasian (Tr. 982)

and she stated that she told Mr. Hoogasian on April 28,

1963, that the fetus Dolores had passed on April 15th was

put in a jar to save for a doctor’s examination. (Tr. 994).

Terry Green was present on April 26, 1963, at the Billy

G. Cabin No. 4, Zion, Illinois, and helped transport Do-

lores from Zion to Great Lakes Naval Hospital. Terry

Green stated that Peterson was at the motel. Terry Green

told what he knew of the affair to Hoogasian. (Tr. 969,

1099, 1102).

Defendant, former coroner, Robert Babeox testified that

he was present at the North Chicago Police Station on

April 28, 1963, when Joanne Fitzjolin was there and had re-

lated the events concerning the abortion to Captain Craw-

ford and himself. (Tr. 1055).

As Sa

8

Babcox was present when Peterson was brought to the

police station that day and heard Captain Crawford read

a warrant (Tr. 1056). Immediately after reading the war-

rant, Peterson was placed under arrest by Captain Craw-

ford. (Tr. 1056).

Babeox testified that Peterson acknowledged knowing

Mrs, Katalanich and that he had placed a catheter in her

uterus, after which she went into shock. Peterson told the

officer that Mrs. Fitzjohn had made arrangements to take

Dolores to the Great Lakes Naval Hospital. (Tr. 1057,

1058).

Babeox testified that Peterson had told him that hg had

performed over 100 abortions in the county and that lhe

did not know what had gone wrong with this one. (Tr.

1058). He also testified that he had charged a fee of

$200.00, but that he had refunded $100.00 after having

sexual relations with Dolores, (Tr. 1058).

The attempts to arrest plaintiff:—

Mrs. Peterson, the plaintiff’s wife, stated that at ap-

proximately 12:30 a.m., April 28, 1963, Milburn Krapf, a

Zion policeman, came to her home and requested to see her

husband, (Tr. 112-114). She stated that her husband was

not at home at the time, but was away at a bowling tourna-

ment in Aurora, Illinois. (Tr. 112).

The police officer returned and apprehended Peterson

at approximately 3:30 p.m. that afternoon. (Tr. 112-114).

Peterson’s wife learned of this later and was told by the

Zion desk sergeant that her husband was taken to the

North Chicago police station, (Tr. 115-116). She went to

the North Chicago police station and was informed by

Hoogasian that her husband was being held on a charge

of murder by abortion. (Tr. 119).

9

The open view of the seized evidence:—

At the time of his arrest, Peterson had just returned

by automobile from the bowling tournament in Aurora.

When Officer David Biddle, of the Zion Police Depart-

ment, arrived at the Peterson home, he saw Peterson and

Officer Krapt emerging from the house. (Tr, 938). At

that time Biddle picked up a valise and a small paper

bag that were in the open trunk of plaintiff’s car and took

them to the police station. (Tr. 939) This luggage was the

same described by Mrs. Fitzjohn as taken by Peterson

into the bedroom at the Billy G Motel with Mrs. Katalanich,

and with which he departed in his automobile. The contents

of one of the bags inventoried by the police were as fol-

lows: (1) 6 used catheters; (2) 1 pint of Seven Crown

liquor; (3) 14 white pills; (4) a plastic bottle; (5) a jar of

vaseline: (6) some type of medicine; (7) six additiona!

catheters; (8) a partially used bottle of Southern Com-

fort; (9) a fifth of Martini & Rossi Vermouth: (10) two

other catheters: (11) miscellaneous wire, trays, tape and

Listerine. (Tr. 752, 753).

On cross examination, Peterson acknowledged that the

bag contained some of the foregoing items, (Tr. 425-427).

The record shows the following:

“Q. (By Mr. Curcio) Did you have any catheters

of any kind ip that bag or in the suitcase?

A. Yes.

Q. Were there three instead of six, sir?

A. There may have been.’? (Tr. 425-426).

First encounter at the Zion police station:—

Defendant Hoogasian testified that he was present when

Peterson was brought to the Zion police station in the late

afternoon of April 28, 1963. (Tr. 693). When Peterson

arrived at the North Chicago police station, the warrant

10

for his arrest was read to him by Captain Crawford, who

also served a copy upon Peterson. This was done in the

presence of Hoogasian. (Tr. 727, 1056). A copy of the ar-

rest warrant was subsequently given to Peterson’s attor-

ney, Ulick, by one of Peterson’s relatives, (Tr. 256).

Hoogasian denied that Peterson was asked to undress

in the presence of the officers or to answer questions in a

standing position. (Tr. 693). Peterson was seated in a

captain’s chair made of wood, and with a back. (Tr. 735).

Hoogasian related that Coroner Babeox and Captain

Crawford told him that Dolores Katalanich had died at

the hospital, that her death was due to aseptic abortion

and that the Coroner was requested by Captain Craw-

ford to make an investigation. (Tr. 746).

Captain Crawford also requested the Lake County Sher-

iff to go to the Bill G. cabin to get the blanket and bed

sheets and also to obtain the fetus that had been delivered

to the Great Lakes Naval Training Hospital by Mrs. Fitz-

john. (Tr. 747).

Hoogasian testified that Captain Crawford inquired of

him whether *‘he had sufficient probable cause for the prep-

aration of a complaint and warrant; and I said he did,

based upon his investigation to date.’’ (Tr. 747).

Mrs, Fitzjohn, who was already at the station, then made

her statement in the presence of Hoogasian’s stenographer.

(Tr. 748).

Hoogasian identified a photograph portraying ‘‘Mr.

Peterson’s attire as it was at the time | Hoogasian] first

saw him at the North Chicago Police Station, until later

that evening.’’ (Tr. 750). Peterson identified the same

photograph. (Tr. 465).

11

Hoogasian also personally saw the contents in the bag

that was recovered by the police. (Tr. 750).

As to the initial conversation between Peterson and

Hoogasian at the police station, Hoogasian explained the

absence of his secretary at the time he was questioning

Peterson. He stated that ‘‘Mr. Peterson didn’t want my

secretary to be there when he gave answers to the ques-

tions which I asked of him.’? (Tr. 757). Peterson refused

to answer any questions in the presence of the secretary

while she was taking notes. (Tr. 757).

Hoogasian was positive that officer Nystrom did not

stand behind Peterson with any object during the interroga-

tion or threaten Peterson. (Tr. 759).

Peterson’s wife arrived at the police station at approxi-

mately 5:30 pam. on April 28, 1963. She saw her husband

and was permitted to speak to him for about five minutes.

(Tr. 125). She stated that he looked ‘‘haggard and tired’’,

(Tr. 125) Mrs. Peterson was not aware that her husband,

who had been absent all of Saturday night and Sunday

morning, had driven from the Aurora bowling tournament

to Antioch and back to Aurora for some more bowling, be-

fore returning to his home in Zion on Sunday ofternoon.

(Tr. 148).

When she saw him briefly at the police station, he was

fully clothed. (Tr. 161). She saw no marks or bruises on

him. (Tr. 161).

Hoogasian related that Peterson’s parents and sister-

in-law came to the police station at the time of the first

interrogation of Peterson. They arrived about 10 min-

utes to 7:00 and left at 7:00. (Tr. 1112).

The sister—or sister-in-law said, *‘We can’t believe it,

it’s not true.’? And Mr. Peterson said, ‘Yes, it is.’’? The

12

wife said, ‘‘Don’t say anything, we will get a lawyer for

you. Don’t say anything.’’? They spoke with him. ‘Then

they asked us about the charge, and we said that the charge

was murder.’’ (Tr. 1112). Captain Crawford then told the

relatives that they had to leave.

Conferences between plaintiff and counsel:—

Peterson’s wife contacted Frank Pat Daley, a Waukegan

attorney, on the day of Peterson’s arrest. (Tr. 126-127).

On the Tuesday following Peterson’s arrest, Mrs. Peter-

son engaged Walter Ulick, an attorney, to represent her

husband. Walter Ulick was retained on May 1st. She

gave him a check in the sum of $8,000, of which $3,000 was

to be his legal fee. (Tr. 131). (The balance was for the

purpose of posting bond for her hushand’s release.)

Mrs. Peterson also discussed her husband’s case with

Adeline Geocaris, a Lake County attorney. (Tr. 149, 150).

Peterson admitted that Attorney Adeline Geocaris visited

him in the County Jail on April 30th (Tr. 505) and that he

had also consulted Richard Christensen, (Tr. 505). Mrs.

Peterson also testified to retention of Attorney Dick Chris-

tensen. (Tr. 150).

Attorney Walter Ulick represented Peterson from the

time of his retention in May 1963, until the hearing on

probation in January 1964.

Iloogasian testified that he had not advised Peterson

of his right to remain silent during the first interrogation,

or his right to counsel, because the law at that time did not

require him to state this to the person arrested. (Tr. 1115-

1116).

Attorney Ulick acknowledged that he had been furnished

a copy of the indictment, a list of the State’s Attorney’s

witnesses, and a notice of the oral statement his client had

13

given to the police, (Tr, 250). He stated that he had re-

ceived a copy of the arrest warrant from some member

of Peterson’s family (Tr. 256).

Ulick stated that Peterson had never informed him, nor

had ever testified of any physical mistreatment at the

police station, or of threats, or of being forced into making

oral statements implicating him in the death of Dolores

Katalanich. (Tr. 253). Peterson never told Ulick of being

threatened by Hoogasian, Stanczak or Larson. (Tr. 254).

The oral statements which Peterson gave the police were

not forced from him by the alleged refusal of the police te

allow him the use of toilet facilities at the police station.

(Tr. 255). The plaintiff never told Ulick of being forced to

strip his clothes and stand naked in a cirele with the defen-

dants. (Tr. 258).

At the time that Ulick received a copy of the indictment

he was not aware that ‘*murder by abortion’? was no longer

a statutory offense. (Tr. 189). Ulick stated that if he

had made a motion to quash the indictment on that ground,

he was certain that the State’s Attorney would have re-

indicted Peterson on a new charge under a corrected in-

dictment. (Tr. 273).

Bail:—

Hoogasian testified that the procedure for the release of

a defendant on bail is initiated by a motion or request by

the deefndant. Prior to November 29, 1963, neither Peter-

son nor his attornevs had requested bail. (Tr. 692). On

November 29, 1963 Peterson’s wife posted bond in the

amount of $5,000 for his release. (Tr. 141).

Preparation of the indictment:—

Peterson was indicted on May 6, 1963 by the Grand

Jury of Lake County for the crime of ‘‘murder by

abortion.”’

**Murder by abortion’’ under the Illinois Criminal Code

(Ill. Rev. Stats. 1959, Chap. 38, § 3) was repealed January

1, 1962.

Hoogasian prepared the indictment. The language used

in the indictment encompassed all the essential allegations

of the offenses of murder as defined in Sec. 9-1 of Chap. 38,

Ill. Rey. Stats., 1963. (Tr. 628, 1127).*

Statute on “Murder by

Abortion” —

[ Ill. Rev. Stats. 1959, Ch. 38,

§ 3, repealed as of January 1,

1962}.

ABORTION

3 Producing| Whoever, by

means of any instrument, medi-

cine, drug or other means what-

ever, causes any woman, preg-

nant with child to abort or mis-

carry, or attempts to procure

or produce an abortion or mis-

carriage, unless the same were

done as necessary for the pre-

servation of the mother’s life,

shall be imprisoned in the peni-

tentiary not less than one year

and no more than 10 years;

or, if the death of the mother

results therefrom, the person

precuring or causing the abor-

tion or miscarriage, shall be

guilty of murder.

Statute on “Murder”

[Ul Rev. Stats. 1963, Ch. 38,

$ 9-1].

9-1. $= 9-1. Murder.] (a) A

person who kills an individual

without lawful justification

commits murder if, in perform-

ing the acts which cause the

death:

(1) He either intends to kill or

do great bodily harm to

that individual or another,

or knows that such aets

will cause death to that

individual or another; or

He knows that such acts

create a strong probability

of death or great bedily

harm to that individual or

another; or

He is attempting or com-

mitting a forcible felony

other than voluntary man-

slaughter.

(2)

(3

Plaintiff's plea of guilty before Judge Moran:—

At the hearing before Judge Moran on November 29,

1963, Peterson stated to the court that no promises of any

kind had been made to him for his plea of guilty to the

15

charge of Involuntary Manslaughter. He stated to the

court that he was making his plea of guilty voluntarily.

(Tr. 263).

Attorney Ulick testified that he knew of no force or

compulsion exerted on Peterson to make his plea of guilty.

(Tr. 260). Peterson gave Ulick permission to enter the

plea of guilty on his behalf. (Tr. 267).

Ulick informed his client before the hearing that the

Judge would ask him certain questions as to whether his

plea was voluntary, and the like. (Tr. 283).

The defendants who are not Respondents:—

As the Court of Appeals notes, the court directed ver-

dicts in favor of five of the defendants (Messrs. Krapf,

Biddle, Houte, Stanezak and Larson) and the complaint

was dismissed as to them.

Plaintiff took no appeal with respect to Krapf, Biddle

and Houte. Biddle and Houte were the officers involved

in connection with the alleged ‘‘illegal search and seizure’’

of the evidence recovered from plaintiff’s automobile.

Although petitioner does not explicitly so state, it is as-

sumed he seeks review in this court only with respect to

defendants Jack Hoogasian (Assistant State’s Attorney),

Robert Babcox (Coroner) and defendant Nystrom (Police

Officer).

16

ARGUMENT

I,

THE ARTICLES TAKEN FROM PETITIONER’S AUTO-

MOBILE BY THE ARRESTING OFFICERS WERE IN

PLAIN VIEW AT THE TIME OF HIS ARREST, WERE

NOT ILLEGALLY SEIZED PURSUANT TO ANY IL.-

LEGAL SEARCH, AND THE TESTIMONY CONCERN.

ING THEIR RECOVERY WAS ADMISSIBLE IN THE

INSTANT CIVIL ACTION.

A. There was no illegal search nor seizure.

Petitioner asserts, ‘*The District Court, as did the Court

of Appeals, held that police officers and prosecutors can

introduce evidence which was seized in violation of the

Fourth and Fourteenth amendments to the U.S. Constitu-

tion in defense of a lawsuit filed pursuant to Tit. 42, $$1983

and 1985.’’ (Pet. 6)

Building on the premise that petitioner’s automobile

was ‘‘illegally searclied’’ and that the articles taken were

‘‘illegally seized’? petitioner relies on the doctrine of

Mapp v. Ohio, 367 U.S. 648, 648, to the effect that legally

seized evidence ‘‘shall not be used at all.’

Petitioner cites this Court’s holdings in Henry v. United

States, 361 US. 98, 4 L. Ed. 2d 134, and Whiteley v. War-

den, 401 U.S. 560, 28 L, Ed 2d 306, and goes on to assert that

the ** ‘good faith’ of the arresting officer basing his de-

cision to arrest on instructions of other officers or on his

belief that a warrant exists is irrelevant where no probable

cause for the warrant in fact exists.’’ (Pet. 7).

17

In the case at bar the record shows that a warrant in

fact had issued for the arrest of petitioner. Further the

preliminary investigation of the Lake County coroner

and the statements made to the State’s Attorney and the

police by Mrs. Joanne Fitzjohn and other witnesses fur-

nished ‘probable cause’? for the warrant to issue. The

arresting officers would indeed have been derelict in their

duty to the community if they did not promptly move to

apprehend the petitioner. The validity of the arrest war-

rant which led to the apprehension of petitioner was not

questioned, and is not an issue in this cause.

The record, moreover, does not sustain petitioner’s re-

peated contention that the evidence ‘was illegally seized.’’

There is no finding to that effect at any stage of the vari-

ous proceedings in the courts below—i.e., the criminal court

of Lake County, the probation hearing, the habeas corpus

hearing in Will County, or the U.S. District Court civil

action trial.

When the police officers came to petitioner’s home to

arrest him, the trunk of his automobile was still open upon

his return from a bowling tournament. The trunk of the

car contained two or three bags; one of which contained

the various abortion instruments and articles. The bags

or suitcases which were recovered by Officer Biddle*, were

the same bags or suitcases which were described by Wit-

ness Mrs. Joanne Fitzjohn, who testified at the Civil Rights

trial that she had related to Hoogasian and Babeox that

Peterson had those bags at the Billy G Motel, had taken

* Plaintiff's trial counsel stated that he had no objection to the

granting of a motion for directed verdict in favor of Biddle and

Houte. the Zion Police Officers who had allegedly “illegally seized”

the bags. (Tr. 878).

18

them into the bedroom with the decedent, Dolores Katala-

nich and then departed with the luggage in his automobile.

(Tr. 990-991)

The officers of the Zion police department had gone to

Peterson’s home to arrest him, pursuant to the warrant

issued in North Chicago. In view of the open trunk, and

what was visible to the officers, who had a right to be there,

there is no reasonable basis for petitioner’s contention

that the evidence ‘‘was illegally seized’’.

In Harris y. United States (1968), 390 U.S. 234, 88 S. Ct.

992, 19 L. Ed. 2d 1067, the Court has said, (p. 236):

‘It has long been settled that objects falling in the

plain view of an officer who has a right to be in the

position to have that view are subject to seizure and

may he introduced in evidence. Her v. California, 374

U.S. 23, 42-43, 83 S. Ct. 1623, 10 L. Ed. 2d 726; Hester

v. U.S., 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 392.”’

The court has applied the ‘‘plain view’’ doctrine, ex-

pressly or by implication, in other cases: United States v.

Lee (1927), 274 U.S. 559, 47 S. Ct. 746, 71 L. Ed. 1202;

United States v. Lefkowitz, (1932) 285 U.S. 452, 52S. Ct.

420, 76 L. Ed. 877; Trupiano v. United States (1948), 33

U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663; Stanley v. Georgia

(1969), 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542;

see also Coolidge v. New Hampshire (1971), 403 U.S. 445,

$1 S. Ct. 2022, 29 L. Ed. 2d 564.

In those cases it was recognized that an arresting officer

may look around at the time of the arrest and seize those

fruits and evidences of crime or those contraband articles

which are in ‘‘plain sight’’ and in his immediate and dis-

cernible presence, especially, as in Harris and Ker, supra,

19

where the officers are deemed to ‘‘have a right to be in the

position to have that view.’’ (See Annotation, ‘‘Search &

Seizure, Observation of Objects in Plain View,’’ 29 L. Ed.

2d 1067).

Moreover, in the case at bar, if there was a search of

petitioner’s automobile, which led to the recovery of the

items in question, that search and seizure was incidental

to a lawful arrest and was contemporaneous therewith.

See: Coolidge v. New Hampshire, 403 U.S. 443, at p. 456,

quoting from United States v. Rabinowitz, 339 U.S. 56, 70

S. Ct. 430, 94 L. Ed. 653; Vale vy. Louisiana, 399 U.S.

30, 33, 90S. Ct. 1969, 26 L. Ed. 2d 409, in turn quoting

from Shipley v. California, 395 U.S. 818, 819, 89 S. Ct. 2053,

23 L. Ed. 2d 732.

The Court has noted the difference between a search of

a dwelling house or other structure and a search of a

vehicle. It has enunciated the ‘‘exigent circumstances”’

doctrine which might justify even a warrantless search of

an automobile in circumstances that would not justify the

search without a warrant of a house or an office. Chambers

v. Maroney (1970), 399 U.S. 42, 48, 90 S. Ct. 1975, 26 L. Ed.

2d 419. (See Annotation, ‘‘ Validity under Federal Constitu-

tion of Warrantless Search of Automobile,’’? 26 L. Ed. 2d

893.

On the false premise that the abortion instruments and

other articles recovered by the police officers from the

trunk of petitioner’s car were the fruits of an ‘‘illegal

seizure’’, petitioner argues that the exclusionary rule of

Mapp v. Ohio (1961), 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed.

2d 1081, extended to the instant civil rights action.

ee

20

On this point, the Court of Appeals makes the arguendo

observation:

‘Even if defendant Biddle was legally unjustified in

grabbing the bag, so that their contents could not be

used to convict the plaintiff, nor perhaps to show

probable cause, it would be an overzealous extension

of the exclusionary rule to deny the defendants the

opportunity to use it to corroborate the other infor-

mation in their possession, so [as] to show they acted

in honest belief defendant had committed a erime.’’

(App. 5a Pet.) (Emphasis added).

The sole authority for the petitioner’s proposition that

the Vapp doctrine is applicable to the case at bar, in his

ipse dixit assertion:

“There is no basis in law or logie for not applying

the exclusionary rule to evidence illegally seized in

violation of the Fourth Amendment of the Constitution

merely because the instant suit is a civil action as dis-

tinguished from a criminal prosecution.’’ (Pet. 7).

While the cases on the point are not numerous, a few

cases have held that evidence obtained either by illegal

search and seizure are nevertheless admissible as evidence

in civil cases. Annotation in 5 A.L.R. 3rd 670, ‘*Apmissi-

BILITY, IN CiviIL Cask, or EvIpENCE OBTAINED BY UNLAWFUL

Searcy anp Seizure.’”* The applicability of the exclusion

rule in a forfeiture case (viz. petitioner’s citation of One

Plymouth Sedan v. Pennsylvania, 380 U.S. 693, (Pet. 8))

is on the rationale that a forfeiture proceeding, although

technically a civil matter, is in substance and effect a

* Citing Barker, Admissibility in Civil Actions of Constitutionally

Protected Evidence, 34 Albany L. Rev. 512 (Spring, 1970); Note,

Constitutional Exclusion of Evidence in Civil Litigation, 55 Va.

L. Rev. 1484 (Dee. 1969).

21

criminal proceeding such as to justify an extension of the

protection of the lourth and Fourteenth Amendments to

the owner of the property.

B. Under applicable Illinois law, Petitioner waived his

right to object to the allegedly impermissible evidence.

Still assuming, arguendo, that the abortion instruments

and other articles taken from his automobile at the time of

petitioner’s arrest, was an ‘‘illegal seizure’’, petitioner

had an obligation to assert his Fourth and Fourteenth

Amendment rights, if any, in the right forum and at the

right time—namely, in the State Court in which he was

prosecuted.

Petitioner, however, did not seek to suppress such evi-

dence at that time in that court, although he was repre-

sented by competent counsel of his own choice. Again,

the items in the bag were introduced in evidence during

the probation hearing of January 1964 and again, no ob-

jection was made to the evidence. (Tr. 416). Petitioner

had a further opportunity to challenge the legality of the

evidence in the course of the habeas corpus proceedings,

but again failed to do so.

In the circumstances, petitioner’s failure to make timely

and opportune objections constituted, under Illinois* law,

a waiver of his right to complain of the admissibility of

* People v. French (1905), 33 Il. 2d 146, 210 N.E. 2d 540 Cert.

Den’d, 384 U.S. 1010; People v. Harris, (1965) 33 Ill. 2d 389, 211

N.E. 2d 693, Cert. Den. 383 U.S. 971; People v. Green, (1967) 36

Il. 2d 349, 223 N.E. 2d 101; People v. Nilsson (1970) 44 Ill. 2d

244, 255 N.E. 2d 432, Cert. Den. 398 U.S. 954.

22

the allegedly tainted evidence.** Thus it is a general

procedural requirement, both in state and in fedreal courts

that if a criminal defendant wishes to preserve his right to

challenge on appeal the constitutionality of a search and

seizure to which certain evidence has been obtained, he

must take timely steps in the lower court, either through

a motion to suppress the evidence or through a sufficient

objection, when the evidence is offered at trial, to let it be

known that he objects to the use of the evidence on the

ground that it has been obtained through an unreasonable

search and seizure. U.S. v. McCarthy, 480 F. 2d 1289

(9th a U.S. v. Chastain, 435 F. 2d 686 (7th Cir.);

US. v. Newton, be F. 2d 622 (9th Cir.), cert. den. 404

U.S. 844.

Petitioner’s plea of guilty, voluntarily and understand-

ingly made (while represented by counsel), to the charges

of ‘‘murder by abortion’’, itself constituted a waiver of

his claim of unlawful search and seizure. United States

v. Sturm, 180 I. 2d 418 (7th Cir. 1950), cert. den. 339 U.S.

986; People v. Deweese, 27 Ul. 2d 332, 189 N.K. 2d 247

(1965); Bee v. Beto, 384 F. 2d 925 (Sth Cir, 1967) Anno.

20 A.L.R. 3rd 724, **Plea of Guilty as Waiver of Claim of

Unlawful Search and Seizure’’.

Moreover, it should be noted that in the case at bar it

was not the recovered items which were introduced into

evidence or shown to the civil rights jury, but only the ac-

** The applicability of State law on the subject of waiver was

expressly recognized in Mapp v. Oliio, where the court said: “As is

always the case . . . State procedural requirements governing asser-

tion and pursuance of direct and collateral constitutional challenges

to criminal prosecutions must be respected.” (Ftnt. 9, 367 U.S. 643,

659).

23

count of the seizure by the arresting officers and what they

inventoried. What they inventoried in the bag, coupled

with what the plaintiff told them at the police station,

cumulatively created and supported respondents’ honest

belief that petitioner had committed a crime. The Court

of Appeals aptly observes:

“It should be noted that plaintiff did not appeal with

respect to Biddle (the Zion police officer) and does

not contend [that] any defendant against whom this

appeal is pursued knew the bags were unlawfully

seized, Yet, he claims the gist of their offense was

malice.’? (App. 5a Pet.) (Emphasis added).

Independently of what the officers testified as to what

they inventoried in the bag, Peterson himself acknowledged

on cross-examination in the civil rights trial, that he had

catheters in the bag. (Tr. 425-426).

C. The error, if any, of admitting the evidence of the

seizure was harmless and not prejudicial.

As above shown, the evidence of the alleged illegal seizure

was cumulative and independent of other competent evi-

dence sufficient to furnish a belief by respondents that

Peterson had committed an illegal abortion which resulted

in death. Moreover, the trial judge was careful to ad-

monish and to instruct the jury on the limited purpose for

which the evidence was received.

It has been held that even where the trial court commits

error by admitting evidence in violation of the Mapp rule,

such error does not necessitate reversal where it does not

appear that the evidence may have affected the verdict.

Chambers v. Maroney, 399 U.S. 42, 90'S. Ct. 1975, 26 L. Ed.

24

2d 419; Pasterchtk v. United States (1968), 400 F. 2d 696

(9th Cir.) cert. den. 395 U.S. 982; Williams v. United

States (1968), 399 F. 2d 636 (9th Cir.).

In the case at bar, the defense to the civil rights action

was the good faith and probable cause of respondents in

arresting and prosecuting Peterson. His guilt or innocence

of the crime was carefully excluded as an issue.

If the question of the propriety of the seized evidence

arose in the criminal proceedings, where his guilt or in-

nocence was an issue, the test of prejudicial error would

be whether there was a reasonable possibility of the evi-

dence having affected the verdict. Mapp v. Ohio, 367 U.S.

643, supra; Vale v. Louisiana, 399 U.S. 30; Coolidge v.

New Hampshire, 403 U.S. 448.

But, where, as in the case at bar, there was substantial,

even overwhelming, evidence furnished to the respondents

by other persons to base a belief that Peterson had com-

mitted murder by abortion, the verdict in favor of defen-

dant at the civil rights trial could hardly have been affected

by the testimony concerning the inventory of the suitcase

taken from petitioner’s car at the time of his arrest. Fen

in criminal cases, where the admission of evidence obta ied

through an unreasonable search and seizure was me cly

cumulative of our competent evidence, the doctrine of harm-

less error has been applied. United States v. Blackburn

(1968), 389 F. 2d 93 (6th Cir.); United States vy. Reed

(1968), 392 IF. 2d 865 (7th Cir.) cert. den. 393 U.S. 984.

25

II.

DEFENDANTS ACTED IN GOOD FAITH AND WITH

PROBABLE CAUSE IN ARRESTING PLAINTIFF FOR

A CRIME AND THE JURY SO FOUND.

A. The trial court properly permitted respondents to in-

troduce evidence, including petitioner’s voluntary con-

fession, tending to show that he had committed a crime

which respondents had a duty to investigate and

prosecute.

The petitioner asserts under his proposition IT:

‘The issue involved in this petition is whether a pro-

secutor and police officers who elicited a confession by

physical coercion so that it was involuntary, as distinct

from being obtained in violation of Miranda v. Arizona,

084 U.S. 436, 16 L. Ed. 2d 694, can use said confession

to prove ‘good faith’ in their defense to a suit pur-

suant to Title 42, $$1983 and 1985.’ (Pet. 8)

The allegation that respondents ‘elicited a confession by

physical coercion’’ is completely false, as shown by the

overwhelming evidence in the record, and the jury did not

believe petitioner’s tale of respondents’ alleged miscon-

duet.

Th key issue for the jury’s determination was whether

respondents had violated petitioner’s civil rights when

they arrested, detained and charged him with a crime.

Their defense was that they acted in good faith and with

probable cause.

In the trial court, Peterson objected to the introduction

of his confession on the ground that his guilt or innocence

of the crime for which he was arrested and sentenced was

‘immaterial’? to a civil rights action.

26

It is concededly true that Peterson’s guilt or innocence

of the crime of murder by abortion or of any other crime,

standing by itself, would not be an issue in the civil rights

action. It is therefore important to understand at this

juncture the precise reason why the trial judge permitted

the testimony to which petitioner objected. The evidence

was not admitted for the purpose of showing plaintiff's

guilt or involvement in the crime as such, but for the

probative value it had in reflecting the intent of the defen-

dants at the time they were investigating the death of

Dolores Katalanich. (Tr. 244, 418).

The trial court several times stated that the intent of the

defendants with respect to their conduct toward the plain-

tiff was to be tested ‘‘not in the light of whether he was

guilty of murder by abortion or not, but whether he was

guilty of any crime which they (the officers) believed he

should be charged with.”? (Tr. 22, 74-79, 673).

The court noted that the jury in the civil rights case

would have to decide not only whether Peterson was sent

to prison on a nonexistent statutory offense, but whether

defendants caused his imprisonment with deliberate intent

to violate his civil rights. (Tr. 677). The jury was care-

fully and properly instructed on this point.*

*In ruling on plaintiff's objections to defendant's opening state-

ment refering to plaintiff's confession to the crime, the trial court

restated the issues of the case to the jury and said:

“I merely want to suggest to you that in considering these

opening statements you further bear in mind that we are not

here to try, whether Mr. Peterson was, or was not guilty of any

particular offense. We are here to try his allegations that the

defendants interfered with his civil rights and conspired to de-

prive him of certain rights which he and you and I, and every-

one else are entitled to as citizens of the United States.”

(Tr. 79) Sce also Tr. 20-22, 418-421, 494).

27

Unlike Kerr vy. City of Chicago, 424 F. 2d 1134 (7th Cir.

1970), cited by petitioner (pet. 8)—where the prejudicial

error was the failure properly to instruct the jury—in the

case at bar no contention was made in either of the courts

below that the jury was not properly admonished or in-

structed on any issue in the case.

1, The defense of good faith and probable cause was

available to the defendant under 42 U.S.C. $1983.

Good faith and probable cause constitute a valid defense

to a civil rights action of the kind brought by plaintiff

in the instant case. The trial court scrupulously followed

the law in permitting the evidence to which petitioner

objects.

In Pierson v. Ray (1967), 386 U.S. 547, 87 S. Ct. 1213,

18 L. Ed. 2d 288, plaintiffs, while attempting to use segre-

gated facilities at a bus station in Mississippi, were ar-

rested by municipal police officers on charges of having

violated a Mississippi ‘tbreach of peace statute.’’? Plain-

tiffs were ultimately acquitted of the alleged offense. They

then sued, inter alia, the police officers for damages for

false arrest and violation of their civil rights under 42

U.S.C. $1983. The court held that the defense of good

faith and probable cause were available to the defendants

under $1983. The court declared at p. 555:

**A policeman’s lot is not so unhappy that he must

choose between being charged with dereliction of duty

if he does not arrest when he has probable cause, and

being muleted in damages if he does. Although the

matter is not entirely free from doubt the same econ-

sideration would seem to require excusing him from

liability for acting under a statute that he reasonably

believed to be valid, but was later held unconstitutional,

on its face or as applied.’’

28

The Court went on to clarify its holding in Monroe v.

Pape, 365 U.S. 167 (1961), 81S. Ct. 473, 5 L. Ed. 2d 492,

and said at p. 556:

‘* We in no way intimated [in Monroe] that the de-

fense of good faith and probable cause was foreclosed

by the [Civil Rights] statute ....we went on to say...

section 1983 ‘should be read against the background

of tort liability that makes a man responsible for the

natural consequences of his actions’... . Part of the

background of tort liability in the case of police officers

making an arrest is the defense of good faith and

probable cause.”’ (Emphasis added).

The Court went on to say, at p. 557:

‘*We hold that the defense of good faith and probable

cause, which the Court of Appeals found available

to the officers in the common law action for false arrest

and imprisonment, is also available to them in the

action under See. 1983.”’

In numerous cases it has been held that where probable

cause exists, civil rights are not violated by an arrest,

even though innocence may be subsequently established, or

even where the criminal defendant has been charged or

tried under an inapplicable or invalid statute: Beauregard

v. Wingard, 362 F. 2d 901 (9th Cir. 1966); Gabbard v.

Rose, 359 F.2d 182 (6th Cir. 1966); Kenney v. Fox, 232

F. 2d 288 (6th Cir. 1956); Aguew v. City of Compton, 239

F. 2d 226 (9th Cir. 1956). In the latter case the Court

said, at p. 231:

‘“*No one has the constitutional right to be free from

a law oflicer’s honest misunderstanding of the law or

facts in making an arrest.”’

Tt has heen held that the action of a police officer cannot

be deemed tortious under the Civil Rights Act when he

proceeds on the basis of a reasonable, good faith under-

29

standing of the law, and does not act with unreasonable

violence or subject the citizen to an annual indignity in

the investigation and arresting of the citizen. See: Bowens

v. Knazze, 237 F. Supp. 826 (D.C. N.D. Ill. 1965) ; Hebert

v. Morley, 273 F. Supp. 800 (D.C. C.D. Cal. 1967).

It is of especial significance that in all of the afore-

cited cases, good faith and probable cause on the part of

the arresting officers and prosecutors was held to be a

valid defense precluding recovery under $1983, even though

the civil rights of the plaintiff in each of those cases es-

tablished his txnocexce in the State prosecutions.

The case at bar presents an even stronger basis for the

applicability of the good-faith-and-probable cause defense

under which defendants adduced their evidence: Stanley

Peterson’s Innocence was never established but his con-

fessed guilt of @ crime was. The fact that the crime of

‘*murder by abortion’’ did not exist in the statute books

at the time when plaintiff was indicted for the alleged of-

fense, and that this was the basis for his habeas corpus

release from the penitentiary, did not mitigate the fact

that he was in fact guilty of a crime. He took the life of

Delores Katalanich and he freely confessed to that act as

the record overwhelmingly shows.

The trial judge focused the issue with this apt observa-

tion (made outside of the jury’s presence) :

“*The testimony, thus far, by viriue of Mr. Peterson’s

testimony, reveals him to be cither an aider or abettor

or conspirator in the death of this girl. He was charged

under the wrong statute—which is your ‘offense’ but

you cannot argue backwards and say, that because

murder by abortion was no longer in the Code, [that]

what he did was not a crime.”’ (Tr. 761-762).

30

Resvonding to plaintiff's argument that Peterson’s guilt

or innocence ‘‘is immaterial to a civil rights case’’, Judge

McGarr pointedly said:

‘*T am not trying to try him. I have tried to keep his

cuilt or innocence on the abortion—underlying abor-

tion charge or murder by abortion charge out of this

case.

‘*But your argument suggests to me—and this is why

I rebutted it—that because the crime of murder by

abortion was not existent at the time of the conduct

of Mr. Peterson—whatever the evidence determines it

to be—that he could not be guilty of anything, because

there was no crime of murder by abortion.

‘*Now, what I am saying to you is that you have to

test. in this case—I do and the jury does—the intention

of these officers and other public officials with regard

to their conduct toward him, not in the light of whether

he was guilty of murder by abortion or not; but

whether he was guilty of any crime they | respondents |

believe he should be charged.’ (Tr. 672-673).

2. The evidence of plaintiff’s guilt and confession, and

defendants’ reasonable belief that Peterson com-

mitted a crime, was admissible to negative plaintiff’s

charge of a “conspiracy” under 42 U.S.C. §1985.

In addition to his claim of a violation of section 1983,

plaintiff’s civil rights complaint alleged that ‘*defendants

had entered into a conspiracy to deprive him of equal

protection of the laws’? under 42 U.S.C. $1985.

Again, arguing on the false premise that his confession

was ‘‘extracted by coercion’’—contrary to the facts found

by the jury—petitioner intimates by his argument that the

confession should not have been admitted into evidence

for any purpose, because of the resulting alleged confusion

in the minds of the civil rights jury.

31

Plaintiff’s civil rights complaint alleged that he was

‘illegally’? arrested, detained and mistreated at the police

station and his confession to the crime was coerced from

him pursuant to a ‘‘conspiracy”’.

Thus petitioner himself placed in issue the total cir-

cumstances attending the giving of his confession. Whether

that confession was voluntary or coerced by the respective

defendants, could not be tried in a vacuum. How and in

what manner he came to admit the illegal act, could not be

centrifugally separated from the content of this oral ad-

mission.

The trial of the civil rights cause did not dwell on

plaintiff’s guilt or innocence of the crime he confessed,

but the circumstances under which he confessed. If ‘“eon-

fession’’ resulted from plaintiff's joinder of counts for re-

covery of damages under both sections 1983 and 1985 of

Tit. 42, U.S.C., the risk was entirely plaintiff’s. If evi-

dence of good faith and probable cause was competent

and relevant on the issue of $1983, such evidence was

equally admissible to negative the allegations of ‘‘con-

spiracy’’ under $1985.

Defendants could not be guilty of a conspiracy to per-

form their lawful duties, as they reasonably understood

their duties, and if they acted together in the honest. be-

lief that plaintiff had caused the death of Delores Katala-

nich by performing an illegal operation, this was a com-

plete defense to the conspiracy charge.

To recover under $1985 plaintiff had to show that defen-

dants had a ‘‘purposeful intent’? to deprive him of his

equal protection of the laws. Weise v. Reisner, 318 F.

Supp. 580 (D.C. Wisc. 1970). Defendants had a recriprocal

right to negative the element of ‘‘purposeful intent’ by

introducing evidence of their reasonable and honest belief

of Peterson’s guilt of a crime.

32

Had plaintiff sustained his burden of proof that brutality

and indignity was visited upon him from the time of his

arrest until the alleged ‘‘coereed’’ confession, then it

would be true that the state of mind of the prosecutor and

arresting officers would have been ‘‘irrelevant’’. But the

record, as hereafter discussed, completely belies petition-

er’s assertion. His fanciful tatle of an illegal arrest, of

not being advised of his right to counsel, of being kept

naked at the police station, of being caged in an under-

sized ‘‘chicken coop”’ of being denied access to toilet faci-

lities, medical help, water and food, of becoming exhausted

by this ordeal*—each and every horrendous allegation are

contradicted by the facts in the record together with the

repeated impeachment of plaintiff’s veracity when he was

confronted with numerous instances of prior inconsistent

statements in other impeaching circumstances. (See Ap-

pendix hereto).

B. Plaintiff’s confession of guilt was not coerced and the

circumstances under which the confession was given

were admissible on the issue of probable cause.

Petitioner argues that the District Court should not have

admitted evidence which respondents gathered concerning

his alleged criminal activities, because the introduction of

such evidence emasculated his civil rights remedy. The

* The foregoing catalog of alleged police brutality and horrors

visited upon Peterson by the instant police officers, is so remark-

ably parallel to the alleged police misconduct in Kerr v. City of

Chicago, 424 F. 2d 1134 (7th Cir. 1970), involving another person

in another city, at another time, that the coincidence should not

escape unnoticed. The reasonable inference is that Peterson simply

copied the allegations of the complaint in the Aerr case whether they

fitted his facts or not.

33

novel argument posed by petitioner in his ‘*Catch-22”’

dilemna is that if the party is in fact guilty of a crime,

the more careful the court must be to exclude that evidence

from the civil rights jury. Such a proposition is refuted

by its absurdity.

Under proper instructions, as given by the trial court

in the instant case, the jury was entitled to consider the

‘‘voluntariness’’ of Peterson’s confession in relation to all

the circumstances under which it was given. In Kerr v.

City of Chicago, 424 F. 2d 1134 (7th Cir. 1970) the court

said, at p. 1138:

“*To consider whether the confession was voluntary,

it is necessary for the jury to be allowed to consider

all relevant facts regarding the circumstances under

which a confession from the plaintiff was obtained.

*~ * *

‘*Thus the jury was entitled to hear the testimony

surrounding all the events from the moment Kerr was

taken from his home until his indictment by the Grand

Jury. All the acts of commission and omission—the

totality of all the circumstances—are of great im-

portance in determining whether plaintiff’s confession

was coerced in violation of his civil rights, and there-

by cognizable under 42 U.S.C. $1983’. (Emphasis

added).

In Kerr, the Court of Appeals found reversible error

because the trial court admitted the confession into evi-

dence ‘‘without proper instructions [to] the jury’’ (p.

1139). The error was the refusal of the trial court in that

case to give certain tendered instructions.

In the case at bar the jury was carefully instructed

as to the limited purpose for which Peterson’s confession

was admitted into evidence. No assignment of error was

made as to the propriety in the giving or refusal of in-

structions.

nae

34

If it was permissible for plaintiff to show ‘‘the totality

of cireumstances’’? surrounding the giving of his oral eon-

fession while detained, the same rule permitted the defen-

dants to establish that they acted in good faith. Neither

the truth nor the falsity of Peterson’s confession, nor his

cuilt or innocence was the thrust of the defense, but the

facts and chronology of events which led to the confession

as hearing upon the issue of voluntariness.

A trial court is vested with considerable latitude in the

receipt of evidence which bears on the issue of probable

‘ause: See: Nesmith vy. Alford, 319 F. 2d 859 (Sth Cir.

1963); Daniels v. Van de Venter, 882 F. 2d 29 (10th Cir.

1967).

Although petitioner pretends that his confession was

involuntary and coerced, it is significant that at no stage

in the criminal proceeding in Lake County did Peterson

ever assert or intimate that his confession was not freely

given: If he had been physically mistreated or mentally

tormented into giving his confession, it would have been

entirely logical and natural for him to have so informed

his family and his attorney.

Yet Ulick, testifying on cross-examination stated that

he could not recall the plaintiff ever having informed him

about being forced to make any oral statements at the

North Chicago Police Department. (Tr. 253). Plaintiff

never informed his attorney at that time, or at any time,

that he had been threatened in any way by the police

officers associated with the North Chicago Police Depart-

ment, or that defendants Hoogasian, Stanezak or Larson

had ever threatened him. (Tr. 254). The oral confession

at the police station was not, according to Ulick, the

result of an alleged refusal to permit plaintiff to use the

30

bathroom facilities. (Tr. 255). Plaintiff had never in-

formed Ulick that he had been forced to strip off his

clothes and stand naked in a circle composed of the vari-

ous defendants. (Tr. 258).

The attorney knew of no force or coercion which tainted

plaintiff’s plea of guilty to the charge of involuntary

manslaugher. (Tr. 260). At the time of his arraignment,

before Judge Moran, plaintiff denied that any promise had

been made to him and satisfied the court that the plea of

guilty was voluntary and not produced by threats or coer-

cion, and that he gave lis attorney permission to enter

the plea of guilty on his behalf. (Tr. 262, 263, 267).

If plaintiff felt under some ‘duress’? which pre-

vented him from repudiating his confession before his im-

prisonment, it is especially significant that plaintiff's peti-

tion for writ of habeas corpus was completely silent as

to any alleged coercion in the making of his confession,

nor was such evidence adduced before the Will County

judge who released petitioner from Stateville Penitentiary.

ITI.

THE TRIAL COURT PROPERLY EXCLUDED THE

PROFFERED “IMPEACHMENT” TESTIMONY AND IN

ANY EVENT THE EXCLUSION WAS HARMLESS

ERROR.

Plaintiff called Sgt. John Flood of the Cook County

Police Department in an effort to impeach the veracity of

defendant Jack Hoogasian, then the Assistant State’s At-

torney of Lake County. Plaintiff proposed to do this, not

by confronting Hoogasian with any prior inconsistent

statements, but to attack defendant's credibility by ‘repu-

tation’’.

36

Flood testified that he knew Iloogasian professionally

and had met him approximately four or five times. (Tr.

824). In response to voir dire inquiries by the Court, Set.

Flood stated that he had formed his personal opinion as

to Mr. Hoogasian’s truthfulness; that the opinion was his

own based on his ‘‘familiarity’’ with the defendant. (Tr.

839).

Responding to the court’s questions, the witness stated

that he had discussed Mr. Hoogasian’s reputation as to

truth and veracity with some 60 odd police officers of the

City of Waukegan, and approximately 40 some odd police

officers in the Lake County Sheriff’s Police Department.

(Tr. 839-840). The witness stated that his knowledge and

opinion of Mr. Hoogasian’s veracity in reputation for

truhtfulness arose out of his investigation of certain mat-

ters in Lake County and interviews that he and others

had with Hoogasian. (Tr. 840).

The Court thereupon precluded plaintiff from eliciting

any further testimony from Sgt. Flood, and made the

following observations:

‘‘TIn any event, while I am certain that Sgt. Flood’s

opinion is his own, and is expressed in good faith,

and that he is willing to testify in good faith, I have

doubt that his knowledge of the reputation of Mr.

Hoogasian represents his general reputation in the

community for truth and veracity. And T think that

is the only thing that you can put in, if you ean put

anything in, counsel. Therefore, I’m going to sus-

tain the objection to Sgt. Flood’s testimony.’’ (Tr.

841).

The plaintiff thereupon proceeded to make an offer of

proof outside the presence of the jury.

37

It should be noted that plaintiff had called Hoogasian as

his own witness. <A trial court has a broad discretion in

permitting or disallowing a party to impeach his own wit-

ness. Journeyman Plasters’ etc. ve NLRB, 341 F. 2d 539

(7th Cir. 1965); U.S. v. Ghaloub, 385 F. 2d 567 (2nd Cir.

1966) ; Stevens v. ULS., 256 F. 2d 619 (9th Cir, 1958).

It is apparent from the colloquy that the plaintiff laid an

insufficient foundation upon which to establish the repu-

tation testimony sought to be elicited from Flood. Not

only was Flood insulliciently familiar with Hoogasian’s

general reputation in the Lake County Community, but

the trial court doubted that Flood could testify probatively

as to Hoogasian’s reputation ‘‘among co-workers’’. The

Court of Appeals relied upon Michelson v. U.S., 335 US.

469, 478 and noted that the rule it applied in U.S. v. Parker,

447 F. 2d $26, 831 (7th Cir. 1971) would not be availing

to plaintiff in the instant case.

The trial court, in its discretion determined that Sgt.

Flood’s knowledge of defendant’s work-community repu-

tation was no better founded than his knowledge of Hooga-

sian’s general reputation in the community.

Finally, as the Court of Appeals aptly notes:

‘In any event, the exclusion of the impeaching repu-

tation testimony was harmless error because plaintiff

had been thoroughly discredited by other evidence.’’

(App. 6a Pet.)

In the circumstances, the propriety of excluding Sgt.

Flood’s testimony was not such a substantial question as

to merit this Court’s review.

38

CONCLUSION

Petitioner purports to raise substantial and sensitive

constitutional questions by asserting that ‘illegally seized”

evidence and a ‘‘coerced confession’? were introduced in

his civil rights action, so as to deprive him of a fair trial.

The facts do not fit his theory and the record totally dis-

credits his assertions of impropriety.

Although petitioner was released from the penitentiary

on the technical fluke that he had been sentenced for a

statutory offense, ‘‘murder by abortion’’, (which had been

repealed before his indictment), plaintiff proceeded on the

false premise that any defenses of good faith and probable

eause by the public officials involved in his arrest, deten-

tion, prosecution and imprisonment, were untenable and

had to be excluded from his civil rights trial.

The courts below however correctly ruled that in the

circumstances, the defendants were entitled to show by the

evidence that they honestly and reasonably believed, ab

initio, that Peterson was guilty of criminal activity to

which he oraily and freely confessed and admitted in open

court, both on his plea of guilty and at his subsequent pro-

bation hearing.

The defenses of good faith and probable cause were rele-

vant to the allegations of plaintilf’s complaint that defen-

dants had violated his civil rights under $1983 and $1985

of the Civil Rights Act. The state of mind of the defen-

dants was germane to their conduct in relation to the

plaintiff.

The record shows that the trial court carefully admon-

ished and instructed the jury at all phases of the trial

from the outset, during the taking of testimony and in jury

39

instructions, and that the evidence of plaintiff’s confes-

sion of guilt was limited solely to the question of good

faith and probable cause and not to re-try plaintiff's guilt

or innocence, There was no error in the admission or ex-

clusion of evidence and plaintiff was not deprived of a

fair trial.

It is therefore respectfully submitted that the Petition

for Writ of Certiorari should be denied,

Respectfully submitted,

Joseru R, Curcio

Tuomas J. Burke, Jr.

Attorneys for Respondent

)f Counsel:

Siwney Z. Karastx

Appendix follows:

a]

PTY sant

ce -

ML) e

APPENDIX

APPENDIX

Peterson’s self portrait as a victim of official brutality,

forced to confess a crime he did not commit and suffering

alleged indignaties, is belied by the record. The picture is

also demolished by the repeated impeachment of plaintiff

when confronted by prior inconsistent statements and con-

duct:

Peterson denied ever receiving a copy of the indict-

ment, a list of the State’s witnesses or of the notice

of his oral statements. The official docket entry of

the Lake County proceedings before Judge Moran

(Plaintiff’s own Exhibit 6), showed that on May 7,

1963, in open court, plaintiff was presented with those

documents. (Tr. 388).

Peterson acknowledged that the Lake County tran-

seript of the proceedings reilected the service of those

papers upon him (PIf. Ex. 3) but denied the truth of

that portion of the transcript. (Tr. 389).

Plaintify denied that after April 28, 1963 he was

ever shown or read a copy of the arrest warrant charg-

ing him with murder, and asserted that he did not

see such a document until it was subpoenaed by his

lawyer, Mr. Kutner in 1971. (Tr. 401, 403). But on

June 17, 1966 he wrote a letter, over his signature,

to John W. Freelds, Court Administrator of the Tili-

nois Courts, Springfield, Illinois, relating his arrest

on April 28, 1963, and stating in part:

“At this time 1 was handcuffed by police from

another city and taken to their police station.

At this time I was read a warrant.’’ (Tr. 407).

App. 2

Plaintiff admitted that the contents of one of the

bags taken from the trunk of his automobile by the

police, contained several rubber catheters, liquor,

drugs and some of the other articles inventoried by

the police. (Tr. 425-427).

Peterson acknowledged that ‘the may have’’ told

Hoogasian that he felt the pressure of puncturing a

membrane. (Tr. 454).

He admitted that at the Coroner’s inquest he told

Babcox that the reason he confessed to committing

the abortion was because he thought someone else

might have done it ‘‘and I was eiving him time to

get out of town’’, by “him” referring to ‘‘Joan Fitz-

john’. ’ (Tr. 456).

Peterson stated that the last time he saw Dolores Kata-

lanich was on April 26, 1963, in an automobile outside of

Cabin 4 at Billy G. Motel, and that he did not believe that

she was conscious. (Tr. 458). He admitted helping Terry

Green and Joanne Fitzjoln carry Dolores out of Cabin No.

4, (Tr. 459).

He admitted that at the probation hearing on January

21, 1964, he had given catheters to women for the per-

formance of abortions upon their person, (Tr. 460). He

admitted swearing to the truth of his testimony at the

probation hearing (Tr. 460) and that at the hearing he

told the court ‘‘that he had provided the instruments’? for

the performance of abortions. (Tr. 464, 465).

Peterson identified a photograph taken by photoflash

at the North Chicago Police Station when he emerged from

a room, which photograph showed him fully clothed. (Tr.

465).

App. 3

Although he testified that he had been ‘*exhausted”’

by the police interrogation in the afternoon and evening

of April 28, 1963, he admitted that he had bowled in a

tournament in Aurora on April 27, 1963, had left Aurora

for dinner in Antioch, Illinois, a distance of 70 or 80 miles,

visited a number of taverns in Lake County after dinner,

returned to Aurora between 2:00 and 4:00 a.m. of April

28th, spent the early morning hours with a bowling com-

panion before returning to his home in Zion. (Tr. 469).

He admitted that he had tried to rest and relax at the

police station, although he was being questioned about a

crime, that he fell asleep in his cell and had slept before

his wife visited him at the police station, and that he had

slept in this fashion, even though he had **exeruciating”’

bladder trouble. (Tr. 471).

On cross-examination, he stated he did not know from

the questions put to him by the police officers, what had

happened to Dolores Katalanich, except that she was taken

to a hospital. (Tr. 472). On June 4, 1969, at a deposition

he had stated that he first learned that Dolores Katalanich

had died when he was at the North Chicago Police Station

(Tr. 474).

At the probation hearing, Peterson, responding to ques-

tioning by his own attorney, stated:

‘Ife came in and suggested after looking at her and

talking briefly, that we get her to a hospital, so I

said, well, | wanted to see if she had a eatheter in her.

If she has we will have to take it out and send her

to the hospital, so I removed it.’? (Tr. 491).

Peterson remembered that before Dolores Katalanich

was taken from the Billy G. Motel room, that he opened

her purse and put $80.00 in it. (Tr. 492 ) On cross-exami-

te

a

App. +

nation Peterson also acknowledged that his wife had re-

tained a lawyer for him, Pat Daley, that Mrs. Adeline

Geocaris was also retained on April 30, 1965, that Mrs.

Geocaris visited him in the Lake County Jail, that he in-

structed his wife to discharge Mrs. Geocaris the following

day, that Richard Christensen, a lawyer, was consulted, but

not retained, and that Mr. Ulick was retained on May

1st. (Tr. 505-506).

What Peterson really complains of in the instant peti.

tion is that the trial court permitted the defendants the

opportunity to establish that plaintiff was an incorrigible

liar and that his tale of deprivation of his civil rights wa:

simply fiction.

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